53 F. 846 -

53 F1d 846

Case Text

J'EDER.U.IUllPORTER ,voL

53.

'i'fi'butd'bay;e been, attended with no danger whatever had not the tug

on towards the bark, and thereby caught the pilotSt the tug's rail, between the tug aM bark, so causing their death. It seems to J1l.Eiclear that the ,cause ,of the accident was the neglect of the manait tile wheel of the tugboat to pay strict attention to what was before, him.; whereby he failed to see the position of the,yMvl until it was too late to stop his boat. Had he seen the posit,imliof the yawl when he ought to have seen it, he could have avoided, the collision, either by stopping the headway of his boat, or bysta.rboarding his helm. When, at the last moment, he saw the dangu-, he did just the wrong thing. ,Such attention on the part or thei>Hot 'of. the, tug as the occasion called for would, in my opinion, have avoided the collision. Let a decree be entered declaring th.& petitioner liable to damages in the sum of $5,000.

A WllS bebig'towed trom the olty ot Hobne, through Mobile river to the ba,t,and,llaVing passed the turn stake, wus followin,!; the d'tMged channel $Outheastward. At the same time a small, tug. with two rafts of logs, the, first' aline 200 feet long,' and the other astern of It"bo$aggregatlng, ab,out, 900 teet, was coming down the Blakely river Channel troJ11 the northeiJ.lgt,· The parties on the tug could see the bark for · mUe or'more, and those.on the bark could see the tug about a half mile away. The tug first reached the junction of the two channels, and turned northwestward, towards'iMobile, keeping as close as possible tothe northern edge of the channel. Signals" were exchanged to pass port to port, Rnd the bark kept as close as possible to the south bank of the leaving about SOOJeet between them. It was ebb tide, and the current swept diagonally across the channel, tlnd carried the rafts s(} far over that they came Into' ;collision with the bark, and were broken apart, sorneof the logs being lQst·. The bark was at moderate speed, and could not have stopped at any time shortly before the collision without goIng aground.. The tug was not of sutficie.at force to carry the rafts at a speed which wouJ,d prevent their drifting, and her master testified that the rafts wel'e not o:fsufliotent strength to stand a much greater rate of speed without breaking. ,Held, on a libel to recover for the lost logs, that the' bark was not,.ln fault, as, being a foreigner, her mastf'r could not be presumed to know thd peculiarities of the local navigation; nor was the fact that she was in charge of a bay pilot sufficient to charge her with such knowledge and extraordinary precautions as would have been necessary to the effects of the lnsufiiclency of libelant'. tug and the unwieldy proportions and feeble construction of the rafts. 8. a.un!;., .. If there was any fault,lt Wilson tile pa:.-t: of those in charge of the rafts, who were regularly engaged In 'the business of towing logs through thechannel, and attempted the' passage with a full knowledge of its .dangers.

Tow-':ro.1l''l'8.

on

ern District of Alabama.

Appeal frolll the .District Court of the United States for the South..

THE CARr. GUSTAF.

847

In Admiralty. Libel by J. E. Loxley & Son against the Russian bark Carl Gustaf and Gustaf Lindquist, her master, to damages for a collision with a raft belonging to libelants, whereby some of the logs were lost. The district court entered a decree f(jr the libelee, and libelants. appeal. Affirmed. Statement by LOOKE, .District Judge:
On the 25th of February, 1892, the Russian bark Carl Gustaf was being towed to the bay from the city of Mobile. Her course was south through the river, then to the southeastward through a dredged channel to the turn stake, where the channel turned again directly to the south. This dredged channel had a depth of 17 feet for :1 width of from 120 to 240 feet, but for some 500 feet outside the channel on the northern side the water was sufficiently deep for a vessel drawing 5 to 6 feet, making a channel of about SOO feet in width for light draft vessels. Coming down from the northeast and uniting with the waters of Mobile river at the point of the dredged channel and the turn stake, came the waters of the Blakely and Spanish rivers, the channels uniting in the form of the letter Y. The channels were in the bed of Mobile bay with surrounding shoal watm", and the force of the tide at its ebb was southward, and rather obliquely across the chalillels than along them. As the bark was coming down the Mobile river from the northwest, drawing 17 feet of water, and towed by twotugs,-one large lashed to her quarter, and a smaller ·one, with a hawser of 150 feet, ahead,-libelants' tug, the Alert, was coming down the Blakely river channel from the northeast with two rafts of logs. She Wag a small tug, drawing but 5lh feet, having one raft at the end of a line 200 feet lon!(', with another raft made fast to the first; ill. all, 932 logs, extending 900 feet astern of the tug. She was of comparativdy small force, and had been coming down the river with the assistance of the tide but a half or three quarters of a mile per hour. Those on the Alert could see the bark over PInto island coming down Mobile river for a mile or two, and those on the bark could see the .Alert and her tow as soon as they came past PInto island, about a half mile. The Alert reached the point where the channels met and entered the dredged channel heading for Mobile a little before the bark entered the channel from Mobile river and took the extreme northern side, where, on account of her light draft, she could go close to the shoal bank leaving on her port or south side a channel of about 800 feet in width. The bark kept the extreme southern bank as closely as she could go safely, going very slowlY,-the testimony is, with just speed enough to keep steerage way. As the Alert approached the tug towing the bark, each announced its determination to pass to the starboard by blOWing one whistle. The Alert passed the bark in safety, bnt the rafts astern, swept by the tide to the southward, swung entirely across the channel, so that, although the tug ahead of the bark managed to get through, before the bark could pass the raft had blocked quite or very nearly the entire channel, and the bark collided with it, breaking the log by which the two rafts were held together, parting the boom, and letting many of the logs go adrift, by which some were lost, for whieh libf'lants have brought this suit. It was agreed between the parties that the tug Alert was keeping as far as possible to the northern, or her starboard, shore, and the bark as far as possible to the southern, or her starboard shore. Nor is it disputed or questioned that, had the bark stopped her headway at any time shortly before striking the raft, she would have gone aground. In the court below the libel was dismissed, from Which decision libelants have brought this appeal

R. Inge Smith, for appellants. H" Pillans, for appellee. Before PARDEE and McOORMICK, Circuit Judges, and LOOKE, District Judge.

848

FEDERAL REPORTER,

vol. 53.

LOOKE, District Judge, (after Stating the facts.) The three unl1· sualconditionsattending the meeting of these vessels, which, in spite of a careful observance of all ordinary rules of navigation resulted in a. collision, were: First, the lack of strength and power of libelants' tug to keep its tow in line; second, the length and unwieldy charac· tel' and weakness of construction of the tow, the master of the Alert tel;;tifying that it would not have stood being pulled fast enough to keep from sagging-; and, thirdly, the peculiar course of the tide, which, instead of flowing through the channel lengthwise, rather swept. it. Two.ofthese peculiarities pertained alone to the libelants' tug and tow; the third was particularly within the knowledge of those in charge of them. They were' regularly engaged in towing the same cha'I'a;cter of rafts through this channel, and must be presumed to be fully aware of the course, direction, and force of the tides, and the dangel'S attending- its navigation.· Not so the master of the bark. She w8;8a foreign vessel, and he, presumably, unaccustomed to the peculiarities of local navig-ation, and, although that would in no him from ordinary care and precaution upon meeting approaching vessels, .the decree of preliminary and anticipatory care'in which he is charged to have been wanting could notbe de· ,Nor would the fact of her being in charge of a bay pilot requir,e,spch knowledp,'e and extraordinary precaution as would have to counteract the effects of the insufficiency of libel.ant$'tug for the occasion, and the unwieldy proportions and feeble constrtIction. .of the raft. There were no circumstances apparent that could inform anyone in charge of the bark that ill an open channel nearly 800 feet wide, with no visible obstruction, it was to be so completely blocked before he got through that, kp{;ping 9S Closely as possible to the starboard bank, he would be forced into collision with a raft in tow of a steamer upon the further side of' ihe chanp.el. . As far as the bark is concerned, we consider it an unavoidable accident,as it is impossible to see that she was in any way in fanh. She had entered an open channel of sufficient width, had taken and kept the proper position, close to the starboard bank, was pursuing her way in a slow and cautious manner, conforming to the signal of and in all ways observing the rules of navigation. It libelants' was a.naccident unforeseen even by the master of the Alert, who, !.verymoment of the collision, thought there would be room until th for4er to pass. If there was any fault it was on the part of those in charge of libelants' property, who, knowing, as they did, the risks of thepassa,ge, attempted it with a full knowledge of its dangers. It is ordered the jU0$IDent below be affirmed, with costs.

BRANCH V. TEXAS LUHBER MANUF'G CO.

849

BRANCH et at v.

TEXAS

LUMBER lIIANUF'G CO.

(Circuit Court of Appeals, Fifth Circuit. January 23, 1893.)
No. 82.

1.

ApPEAL-JURISDICTION-STIPULATION-WAIVING JURY.

On a writ of error in an action at law tried in the circuit court without ilo jury there is nothing which an appellate court can review when the record does not affirmatively show that 3. jury was waived by written stipulation. as required by Rev. St. § 649. '

2.

SAME-SPECIFICATIONS OF ERROR-ABANDONMENT.

Where in the brief for plaintiff in elTor it is stated that the cause is presented to the court on the "specifications of error hereinafter set forth and discussed," and one of the specifications of error is not thereafter referred to, this may be taken as abandonment thereof.

In Error to the Circuit Court of the United States for the Eastern District of Texas. Affirmed N. W. Finley and Ben. B. Cain, (W. J. Townsend and W. S. Hern· don, of counsel,) for plaintiffs in error. Ingraham, Ratcliff & Inwaham and E. J. Mantooth, (Whitaker & Bonner, of counsel,) for defendant in eITor. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge. McCORMICK, Circuit Judge. The defendant in error, the Texas Lumber Manufacturing Company, instituted in the circuit court for the eastern district of Texas its action of trespass to try title to cer· tain land described in the petition against Wharton Branch and George J. Collins, plaintiffs in eITor, and a number of others. J. 13. Abington and others, also plaintiffs in error, intervened in this action, claiming the land against all the original parties. On September 12. 1892, the circuit court rendered judgment in favor of the defendant in eITor against all of the interveners and against all of the defend· ants below except Wharton Branch and George J. Collins for all the land described in the petition, and against the said Wharton Branch and George J. Collins for all of the lands except an undivided interest of 75 acres in the tract of land described in the judgment, containing about 3,500 acres. Motions for a new trial were made by the defend· ants collectively, and by the interveners collectively, the motions be· ing identical except as to one ground urged by defendants. These motions were refused. At the request of the defendants and interveners the judge of the circuit court had prepared and signed and caused to be filed the proper statement showing his findings of fact and his conclusions of law in the case, in accordance with the Texas practice, and allowed the bills of exception tendered by the parties. The defendants Wharton Branch and George J. Collins assigned errors and applied for a writ of error, which was allowed. The interveners also assigned elTors and applied fora writ of eITor, which was allowed. Both of these writs were perfected by the respective parties giving bond and having cita· tion served on the attorneys of record for the defendant in err()r, and v.53F.no.9-54